Franey v. Union Stock Yard & Transit Co. , 235 Ill. 522 ( 1908 )

Mr. Justice Vickers

delivered the opinion of the court:

The first, second and third contentions of appellant may all be considered together. By its motion to direct a verdict and the exception to the ruling of the court in denying it appellant has preserved for review the question whether there is any evidence fairly tending to support the verdict.

Appellant’s principal contention is that the appellee was upon the premises as a mere licensee, and for that reason appellant owed him no duty except not to injure him'willfully. Appellant owned the. pens and furnished them to appellee and other shippers. These pens were supplied with • water’, and when requested-by the-Owner of the hogs appellant furnished feed. For these privileges the shippers paid the appellant compensation. Appellant did not furnish anyone to feed and water the hogs. . This was done by the owner of the stock, either in person or by his agent to whom the hogs were consigned. In the late case of Pauckner v. Wakem, 231 Ill. 276, this court had under consideration a case involving the distinction between a mere licensee and one upon the premises of another by virtue of an invitation, expressed or implied. After discussing the rules of law applicable to the two relations, this court, on page 279, said: “It will be found that the distinction between a visitor who is a mere licensee and one who is on the premises by invitation turns on the nature of the business that brings him there, rather than on the words or acts of the owner which precede his coming. Permission involves leave and license, but it gives no right. If one avail himself .of permission to cross another’s land, he does so by virtue of the license and not of right. The permission of license is a justification for his entry, and while he is not technically a trespasser, yet the duty of the owner to guard him against injury is governed by the rules applicable to trespassers. * * * The duty to one who comes thereon by the owner’s invitation to transact business in which the parties are mutually interested is to exercise reasonable care for his safety while on that portion of the premises required for the purpose of his visit. Under such circumstances the party is said to be on the premises by implied invitation of the owner.” The nature of the business which appellant permitted to be transacted on these premises, necessarily required the presence of both buyers and sellers of live stock. They must necessarily meet at the pens where the stock is lotted, to effect sales. Until the hogs are sold they belong to the shipper and are in his care and possession. The feeding and watering of the hogs prior to their sale are necessarily .incident to the business of the market. Appellant furnished both feed and water, but it was the business' of the-shipper or his agent to supply the feed and water to his hogs. Appellee was upon the premises at the time of the accident, not as a trespasser or licensee, but by virtue of implied invitation, and was entitled to the protection of.the law requiring appellant to exercise reasonable care to guard him against injury.

Appellant suggests that even if appellee was properly upon the premises by invitation, he was clearly guilty of contributory negligence in climbing the fence to get out of pen 56 into pen 57. To this we cannot agree. Even if it could be said that appellee should have gone to the gate, or at least have climbed the fence which separated pen 56 from the alley-way, instead of climbing the division fence, still it must be borne in mind that appellee was not injured as a result of climbing the fence. The fence did not break, neither did appellee slip from the fence into the hole. He crossed over the fence in safety and was on the platform long enough to adjust the water spout before the accident. The result would have been the same had appellee crossed out of pen 56 to the alley-way and then gone around 57 and approached the hydrant by means of the platform or extension of the floor in the cut-off in 57, which was apparently left for persons to walk on in order to water hogs that might be in 57. It is what happened after the appellee was at the hydrant that caused his injury and not the route selected by appellee to reach the hydrant. We do not mean to hold that appellee was guilty of contributory negligence in climbing the fence to get to the spout. As already intimated, if he had desired to reach the hydrant in any other way he would have had to pass through pen 56, which must have been well filled with hogs. He would then have been compelled to climb the fence to get out of 56, since the evidence shows the gate was locked and the man who had the key was gone. Being in the alley-way, appellee would have to walk north and then climb- the outer fence of 57, and then walk east until he encountered the division fence between the light-shaft and 5 7. .

Appellant’s final contention is that the court erred in permitting appellee, over its objection, to prove what the course of business was in handling stock through those yards and what practice was followed by owners or shippers of stock when they accompanied their stock to the yards. Several witnesses testified that it was a custom followed by many shippers to go into the yards to feed and water their own stock, and for this and other purposes connected with the business being done on the premises such persons would frequently climb over the fences of the pens. This evidence was given by several shippers and persons engaged in the commission business in the appellant’s yards. The evidence tended to show that this had been the general course of business in the yards for a number of years. If, as this evidence tended to prove, shippers of stock to appellant’s yards followed such a general practice, the degree of care required of appellant in keeping its premises in a reasonably safe condition must be determined in view of the manner in which persons rightfully thereon customarily used the premises. This testimony was proper under the holdings of this court in Pennsylvania Co. v. Stoelke, 104 Ill. 201; St. Louis National Stock Yards v. Godfrey, 198 id. 288; North Chicago Street Railroad Co. v. Irwin, 202 id. 345; Chicago City Railway Co. v. Lowitz, 218 id. 24; Chicago, Rock Island and Pacific Railway Co. v. Rathneau, 225 id. 278.

There,are no other reasons urged for the reversal of this judgment.

The judgment of the Appellate Court will be affirmed.

ludgment affirmed.